PARTIES: Trevor Wayne Kennedy (Applicant) Regina (Respondent)
JUDGMENT OF: Simpson J Fullerton J RA Hulme J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2009/10141
LOWER COURT JUDICIAL OFFICER: Freeman DCJ
LOWER COURT DATE OF DECISION: 9 September 2009
COUNSEL: M Thangaraj SC (Applicant) V Lydiard (Respondent)
SOLICITORS: Legal Aid Commission (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
CATCHWORDS: CRIMINAL LAW – particular offences – property offences – aggravated break, enter and steal – recruit child to carry out criminal activity – other offences – CRIMINAL LAW – appeal against sentence – failure to apply principles stated in R v Fernando – error established – appeal allowed, applicant re-sentenced – CRIMINAL LAW – appeal against sentence – failure to give effect to finding of special circumstances – no error established – CRIMINAL LAW – appeal against severity of sentence – individual sentences not manifestly excessive – totality – extent of accumulation of sentences
DECISION: The applicant re-sentenced as follows: Count 1: Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2008 and expiring on 14 January 2011 with a balance of term of 9 months expiring on 14 October 2011. Count 2: Imprisonment for a fixed term of 2 years commencing on 15 October 2008 and expiring on 14 October 2010. Count 3: Imprisonment made up of a non-parole period of 3 years and 9 months commencing on 15 October 2009 and expiring on 14 July 2013 with a balance of term of 11 months expiring on 14 June 2014. Count 4: Imprisonment made up of a non-parole period of 1 year and 8 months commencing on 15 October 2009 and expiring on 14 June 2011 with a balance of term of 7 months expiring on 14 January 2012. Count 5: Imprisonment for a fixed term of 2 years commencing on 15 October 2009 and expiring on 14 October 2011. Count 6: Imprisonment made up of a non-parole period of 1 year and 8 months commencing on 15 October 2010 and expiring on 14 June 2012 with a balance of term of 7 months expiring on 14 January 2013. Count 7: Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2011 and expiring on 14 January 2014 with a balance of term of 9 months expiring on 14 October 2014.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kennedy v R [2010] NSWCCA 260
Case
[2010] NSWCCA 260
Decision Date
CaseChat Overview and Summary
The applicant in this case appealed against his sentence, which was a total of 10 years and 6 months imprisonment, with a non-parole period of 7 years and 6 months, imposed by the County Court of Victoria. The applicant was convicted on six counts of offences, including aggravated break, enter and steal, recruit child, and steal firearms. The offences were committed during two separate break-ins in residential premises in Albury. The applicant and five other juveniles entered the houses, stole property, and committed other offences. The applicant pleaded guilty to all charges and was sentenced to imprisonment for various terms, with some sentences accumulated upon others. The applicant argued that his sentence was manifestly excessive and that the trial judge failed to properly consider the principles stated in R v Fernando.
The court was required to decide whether the sentence imposed was manifestly excessive and whether the trial judge had failed to properly consider the principles stated in R v Fernando. The court also had to determine whether the trial judge had failed to give effect to a finding of special circumstances. The court needed to consider whether the sentences imposed were excessive when taken individually and whether the accumulation of sentences resulted in a manifestly excessive sentence. The court also had to determine whether the trial judge had properly considered the principles stated in R v Fernando and whether the finding of special circumstances was given proper effect.
The court found that the trial judge had failed to properly consider the principles stated in R v Fernando, which resulted in an error. The court held that the error was established, and the appeal against sentence was allowed. The applicant was re-sentenced to a total of 8 years and 3 months imprisonment, with a non-parole period of 5 years and 9 months. The court held that the individual sentences were not manifestly excessive, but the accumulation of sentences resulted in a manifestly excessive sentence. The court found that the trial judge had given proper effect to the finding of special circumstances and that no error was established in this regard.
The court ordered that the applicant be re-sentenced to a total of 8 years and 3 months imprisonment, with a non-parole period of 5 years and 9 months. The sentences were to be accumulated upon each other, and the applicant was to commence serving the sentences on the date of the original sentencing. The court also ordered that the applicant be given credit for the time already served in custody.
Orders
Orders of the court
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Background
Background to the litigation
The aggregate sentence so imposed was a total of 10 years and 6 months, with a non-parole period of 7 years and 6 months.The factsCounts 1 and 2: aggravated break, enter and steal; recruit child These offences were committed during the morning of 21 January 2008, in residential premises. The applicant and five others (all of whom were juveniles) entered the house by a back door, the applicant having observed (and having told the others) that there was no car at the house. They were in the process of searching the house, some of them stealing food and a mobile telephone, when they were disturbed. The householder returned to his house, opened the front door, and heard the sound of people running through the house. He saw five or six people running out of the back door and climbing over the back fence. The offenders ran off and returned to the applicant’s home. Food to the value of $240, and a mobile telephone to the value of $250, were stolen. All persons present, except the applicant, were under the age of 18 years. By the applicant’s pleas of guilty to the s 351A offences, he accepted that he had “recruited” – that is, “counselled, procured, solicited, incited or induced” (see s 351A(3)) a child to commit the offence. (Although five children were involved, the Court Attendance Notice in respect of this offence nominated only one.) In respect of these offences the applicant was sentenced, respectively, to imprisonment for 3 years with a non-parole period of 2 years and 3 months, and a fixed term of imprisonment for 2 years, each commencing on 15 October 2008.Counts 3-5: aggravated break, enter and steal; steal firearms; recruit children These offences were committed in the morning of 10 February 2008, also in residential premises in Albury. Three co-offenders, on their way to the applicant’s home, knocked on the door of the premises. When it was not answered, one of them broke a window and they entered. They saw a safe. They then went to the applicant’s home. With the applicant, they took a shopping trolley to the premises, placed the safe in the shopping trolley and wheeled it to the applicant’s house. They also took a drill from the property. At the applicant’s home, they used the drill to open the safe. It contained three firearms, which they removed. They dumped the safe in a dam at a golf course. The applicant later sold the guns for $400, of which he gave $20 to one of the co-offenders. The co-offenders, again, were under the age of 18. By his plea of guilty, the applicant admitted that he had “recruited” them as outlined above. The sale of the guns constituted one of the offences of disposing of stolen property on the Form 1. In respect of these offences the applicant was sentenced, respectively, to imprisonment for 4 years and 8 months, with a non-parole period of 3 years and 9 months, to imprisonment for 2 years and 3 months with a non-parole period of 1 year and 8 months, and a fixed term of imprisonment for 2 years, each commencing on 15 April 2010 (and therefore accumulated upon the earlier imposed sentenced by 18 months).Count 6: aggravated break, enter and steal